Wednesday, February 10, 2010

Maricopa - plus ça change, plus c'est la même chose

I've been without internet access for a few days. I return, and so do the madmen in Maricopa County where there are two important updates.

David DeCosta

Charges have been dismissed against David DeCosta.

You may remember DeCosta. He's the defense lawyer who was charged with smuggling drugs to his client, Jesse Alejandro, while the latter was in Sheriff Joe Arpaio's jail. Matt Brown got savaged for hiscommentson it.

Well, Matt's now the first out of the gate with the news that the charges were dismissed and the wish, which he recognizes as close to fantasy, that DeCosta's being cleared will get as much publicity as his getting arrested.

DeCosta was falsely accused in a flurry of publicity, yet he was exonerated in relative obscurity. The dismissal of the case against him hasn’t received nearly enough press. It’s shameful that multiple news outlets would jump all over the case when it’s filed then ignore the dismissal altogether. It’s shameful that the first page on Google when you search for his name still includes an article containing the blatantly false claim that he admitted to receiving sexual favors as incentive.

I doubt anyone in the news media is going to pick up the story if they haven’t already. Unfortunately, that’s often the bitter reality of how criminal charges work. It’s hard to see clients endure it, and it’s no easier seeing it happen to a colleague. I truly wish DeCosta the best and hope he’s able to bounce back.

Bennett promptly joined in, with some speculation about why Sheriff Joe's boys and the Phoenix PD chose DeCosta as a target.

I don’t know why DeCosta was targeted. He may just have been convenient, the criminal defense lawyer who was nearest when the time came to show that being a criminal defense lawyer in Maricopa County is dangerous.

It’s also possible that the Phoenix cops are so incompetent that they can’t even successfully frame a guilty man.

I like to think, though, that David DeCosta became the object of Phoenix law enforcement’s unwanted attentions by working harder than they liked, and being more successful than they liked, at defending his clients—in other words, that David was attacked because he was doing his job too well.

And Greenfield notes that the DeCosta mess ultimately helped focus our attention on the extent to which Sheriff Joe and his henchmen aren't just crazy and corrupt but are, in fact, an actual danger to constitutional order.

Matt, a young but tough criminal defense lawyer, got ripped by fellow criminal defense lawyers for posting about DeCosta's arrest. He was slammed hard for not writing about how DeCosta was innocent, how the allegations were lies, how he relied on a report from the Arizona Republic rather than investigate all the facts on his own. Mind you, none of his detractors provided comments showing the merit of their claims. Their only purpose was to go after Matt for commenting on a story in the paper, one that was quite similar to another criminal defense lawyer, Jason Keller, who had pleaded guilty to the crime.

But the poor showing by the locals in their attacks on Matt opened another door, one that spread nearly viral across the internet, about how the rest of us didn't grasp just how bad Sheriff Joe Arpaio was. While we knew about Crazy Joe, they were right. We didn't grasp the depth of the problem. On the other hand, they didn't grasp the depth of their misdirected anger. Without this level of anger, however, there's a good chance that the situation in Maricopa County would not have had the staying power to grab and hold the attention of so many blawgers and others across the country. Silver lining to the cloud.

In passing, Greenfield also observed that the brief story in the Arizona Republic contains this altogether misleading last paragraph.

According to a spokesman for the Pinal County Attorney's Office, the charges were dropped without prejudice for lack of evidence, which means they can be filed again if further evidence emerges.

He tells his readers to

[i]gnore the end of the last sentence, reflecting mere poor reporting and a dumb as dirt reporter who doesn't understand that cases dismissed before jeopardy attaches are inherently "without prejudice," not because there's any expectation that new evidence might emerge. It was a gratuitous, and dopey, inclusion that marred an otherwise triumphant report.

But it goes back to Matt Brown's point about how criminal charges haunt and damage. Exonerations don't have the same force. Wonder what I mean? Take a look at the comment by one "WileE" to the Republic story.

coz - If the charges were frivolous, they would have been dismissed WITH prejudice so no new prosecution could be brought.

The fact that charges here were dismissed WITHOUT prejudice shows there is validity to them. But apparently the Pinal county attorney wasn't prepared to get a conviction, so the judges is leaving the door open in case he can get his act together.

Which is the same as what happened with Dowling, and the reason Thomas has outside attorneys handling Stapley and Wilcox.

We are tired of incompetent local attorneys blowing these cases.

Got that.

Couple bad reporting with ignorance and the message is that an exoneration proves guilt.

Andy Thomas

It's been no secret that Maricopa County Attorney Andy Thomas, Radley Balko calls him Sheriff Joe's enabler, wants to be Arizona's next attorney general. The catch is that he has to run for the office. And to do that, under Arizona law, he has to step down from his current job. No big deal. I mean, it's not like the mortgage payments can't get made during the campaign. Except, well, who'll be doing Joe's dirty work?

Let's take a moment to regroup.

Arizona law says that when the county attorney resigns, the county supervisors appoint the successor, who serves until the next election. But Thomas doesn't like the Maricopa County Supervisors. Hell, he's got two of them under indictment and has four civil lawsuits against all five of the Supervisors. And even if the cases are all somewhere between frivolous and nonsense (which seems likely, but far be it from me to trash Andy's integrity), there's something messy about the Supervisors picking the guy who'll be in charge of the litigation against them.

So Andy sent the Supervisors a letter telling them that they can't fill his slot, no matter what the law says. He has a couple of solutions to offer:

He can stay in office.

The governor can appoint his successor.

The court can appoint his successor.

In essence, Andy wants to be sure that his successor will do his bidding. As the Republic gently puts it, "[H]e wants a role in picking his successor."

Of course, Andy doesn't like to sue the Supervisors, so he suggests mediation. It's not at all clear just what mediation might entail here. Usually, mediation is a process designed to achieve some kind of compromise with which everyone can live. In this case, that would seem to be something like having the Supervisors agree that Thomas can stay on while he runs for office. And reappoint him before he resigns, so there won't be any glitch.

Not shockingly, the Supervisors declined the invitation. Until you resign, they said, there's nothing for us to do. And when you do, well, "[A]ll of our actions will be lawful and ethical."

I'm glad that's cleared up. As Ray Stern wrote for Valley Fever in New Times yesterday,

Listen closely tonight and you may hear the sound of a new lawsuit being typed up over at Thomas' office...

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.